In Sanderson v. Leg Apparel LLC et al, No. 1:19-cv-8423-GHW, 2023 WL 2753200 (S.D.N.Y. March 31, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s race-based discrimination claim asserted under the New York City Human Rights Law.
This decision highlights the difference between the comparatively broad New York City Human Rights Law and its federal and state counterparts:
Unlike his discrimination claims under Section 1981, Title VII, and the NYSHRL, Sanderson has presented sufficient evidence for his NYCHRL discrimination claim to survive summary judgment. That is because under the NYCHRL, Sanderson need not prove any connection between discriminatory conduct and a materially adverse employment action. Instead, he ultimately need only demonstrate by a preponderance of the evidence that he has been treated less well than other employees because of his protected characteristics.
Sanderson has presented sufficient evidence to defeat Defendants’ motion on this claim. First, he has introduced evidence, in the form of his sworn testimony, that he was treated less well than [white employee] Ford. See Sanderson Dep. at 116:19-20, 117:11-13, 119:9-16 (stating that Ford was allowed to read computer articles at his desk, gossip, and fall asleep while Sanderson was not). And he has produced evidence that a jury could find supports a reasonable inference that this differential treatment was based on race: while Doggett—Ford’s Black predecessor—was fired for substandard performance, Ford was not, despite possessing allegedly similar poor work habits. See id. at 102:16–104:6 (Sanderson detailing Doggett’s failings and reporting that he “never really got” his job before being fired). A jury could reasonably see this pattern as supporting Sanderson’s proposed explanation for the differential treatment—that Leg Apparel harbored bias against Black employees.
Additionally, Sanderson’s evidence of purportedly discriminatory comments, while insufficient to prove a hostile work environment under federal or state law, meets the threshold to sustain an analogous claim under the NYCHRL. As discussed, New York courts interpreting the NYCHRL, in light of that statute’s broad remedial purpose, have specifically eschewed the “severe or pervasive” standard applicable to Section 1981, Title VII, and NYSHRL hostile work environment claims. Instead, if there exist triable issues of fact as to whether comments or other purportedly discriminatory incidents in the workplace represent an employee being treated “less well” than others based on a protected characteristic, the claim is for a jury—not a court—to decide.
The Court questions whether several of Sanderson’s allegations are actionable even under this remarkably liberal standard. Opinions about political and social events of the day, or about celebrities—even if they involve race or another protected characteristic—are not necessarily discriminatory. See 56.1 ¶¶ 15–16, 50 (comments about Nikki Minaj, Taylor Swift, and Don Lemon); Sanderson Dep. at 128:21–129:17 (comments about racial justice protests in Baltimore and Rachel Dolezal). Confronted with such a comment, one might try to shake it off, rather than pound the alarm through litigation—just as Mr. Sanderson did at first. But the Court need not reach this issue because Romanino’s “boyfriend” comments [asking plaintiff if a client with whom plaintiff spoke by phone was plaintiff’s boyfriend] are a closer call. A jury could, to be sure, reasonably view those comments also as petty slights and trivial inconveniences that are not actionable even under the NYCHRL. But that is a decision for a jury to make: New York courts, in applying the NYCHRL, have stated that in borderline situations, a jury made up of a cross-section of our heterogeneous communities—not a court—should resolve whether allegations represent such petty slights or trivial inconveniences or, alternatively, constitute actionable harassment.
Based on this, as well as plaintiff’s other allegations pertaining to his differential treatment compared to Ford, the court denied summary judgment as to plaintiff’s NYCHRL discrimination claim.